M/s. Assam Company India Limited, Kolkata V. Assistant Commissioner of Income Tax, Circle-2, Dibrugarh

SA 24/GTY/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0138 (ITAT-GUWAHATI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 26-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Application of stay

Judgement Text

S.A. NO.24/GAU/2019 (IN ITA NO . 123/GAU/2019) A.Y. 20 14-2015 ASSAM COMPANY INDIA LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA-GUWAHATI E-COURT, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI A.T. VARKEY, JUDICIAL MEMBER S.A. NO. 24/GAU/2019 (ARISING OUT OF I.T.A. NO. 123/GAU/2019) ASSESSMENT YEAR: 2014-2015 ASSAM COMPANY INDIA LIMITED,....................... ..........................APPLICANT ASSAM TEA HOUSE, 52, CHOWRINGHEE ROAD, KOLKATA-700 071 [PAN: AAACT 7590 B] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,.............. ....................RESPONDENT CIRCLE-2, DIBRUGARH APPEARANCES BY: SHRI R.P. AGARWAL, SENIOR ADVOCATE FOR THE APPLICAN T SHRI SANDIP SENGUPTA, JCIT , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JUNE 14, 2019 DATE OF PRONOUNCING THE ORDER : JUNE 14, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- BY THIS STAY APPLICATION, THE ASSESSEE IS SEEKING STAY OF OUTSTANDING DEMAND OF RS.8,05,97,340/- FOR ASSESSMENT YEAR 2014 -15. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSEE-COMPANY WAS UNDER CORPOR ATE INSOLVENCY RESOLUTION PROCESS (CIRP) UNDER THE PROVISIONS OF T HE INSOLVENCY AND BANKRUPTCY CODE (IBC), 2016 PURSUANT TO THE ORDER O F NATIONAL COMPANY LAW TRIBUNAL (NCLT), GUWAHATI BENCH DATED 26.10.201 7 AND VIDE ITS ORDER DATED 20.09.2018, THE NCLT, GUWAHATI BENCH HA S APPROVED THE RESOLUTION PLAN SUBMITTED BY THE SUCCESSFUL RESOLUT ION APPLICANT, ABU DHABI BASED BRS VENTURES INVESTMENT LIMITED. HE H AS SUBMITTED THAT S.A. NO.24/GAU/2019 (IN ITA NO . 123/GAU/2019) A.Y. 20 14-2015 ASSAM COMPANY INDIA LIMITED 2 THE SUCCESSFUL RESOLUTION APPLICANT AS PER THE SAID APPROVED PLAN HAS SETTLED DUES OF ALL THE OPERATIONAL CREDITORS WHICH INCLUDES AN AMOUNT OF RS.1.20 CRORES PAID TO THE PRINCIPAL COMMISSIONER O F INCOME TAX, DIBRUGARH. HE HAS ALSO FILED A COPY OF THE SAID ORD ER DATED 20.09.2018 AND INVITED OUR ATTENTION TO CLAUSE 12.1 OF THE APP ROVED RESOLUTION PLAN, WHICH READS AS UNDER:- 12.1. OTHER LIABILITIES INCLUDING CONTINGENT LIAB ILITIES 12.1.1. EXCEPT TO THE EXTENT OF PAYMENTS TO BE MAD E TO THE OPERATIONAL CREDITORS AND OTHER CREDITORS UNDER PARAGRAPH 3 AND 5 ABOVE, THE RESOLUTION APPLICANT A ND ACIL SHALL HAVE NO LIABILITY TOWARDS ANY OPERATIONAL CRE DITORS AND OTHER CREDITORS WITH RESPECT TO ANY CLAIMS (AS DEFINED UNDER THE CODE) RELATING IN ANY MANNER TO THE PERIO D PRIOR TO THE EFFECTIVE DATE. ANY SUCH LIABILITY SHALL BE DEEMED TO BE OWED AND DUE AS OF THE INSOLVENCY COMMENCEMENT DATE , THE LIQUIDATION VALUE OF WHICH IS NIL AND THEREFORE NO AMOUNT IS PAYABLE IN RELATION THERETO. ALL SUCH LIABILITIES S HALL IMMEDIATELY, IRREVOCABLY AND UNCONDITIONALLY STAND FULLY AND FINALLY DISCHARGED AND SETTLED WITH THERE BEING NO FURTHER CLAIMS WHATSOEVER, AND ALL FORMS OF SECURITY CREATE D OR SUFFERED TO EXIST, OR RIGHTS TO CREATE SUCH A SECUR ITY, TO SECURE ANY OBLIGATIONS TOWARDS OPERATIONAL CREDITOR S AND OTHER CREDITORS SHALL IMMEDIATELY, IRREVOCABLY AND UNCONDITIONALLY STAND RELEASED AND DISCHARGED, AND THE OPERATIONAL CREDITORS AND OTHER CREDITORS SHALL WAI VE ALL RIGHTS TO INVOKE OR ENFORCE THE SAME. 12.1.2. IN ACCORDANCE WITH THE FORGOING, ALL CLAIM S (WHETHER FINAL OR CONTINGENT, WHETHER DISPUTED OR UNDISPUTED AND WHETHER OR NOT NOTIFIED TO OR CLAIME D AGAINST ACIL) OF ALL GOVERNMENTAL AUTHORITIES (INCLUDING IN RELATION TO TAXES, AND ALL OTHER DUES AND STATUTORY PAYMENTS TO ANY GOVERNMENTAL AUTHORITY) RELATING TO THE PERIOD PRIO R TO THE EFFECTIVE DATE, SHALL STAND FULLY AND FINALLY DISCH ARGED AND SETTLED. 12.1.3. ANY AND ALL LEGAL PROCEEDINGS (INCLUDING A NY SHOW CAUSE, NOTICE, ADJUDICATION PROCEEDINGS, ASSES SMENT PROCEEDINGS, REGULATORY ORDERS ETC.) INITIATED BEFO RE ANY FORUM BY OR ON BEHALF OF ANY OPERATIONAL CREDITORS OR OTHER CREDITORS OR GOVERNMENTAL AUTHORITIES, TO ENFORCE A NY RIGHTS OR CLAIMS AGAINST ACIL SHALL STAND IMMEDIATELY, IRR EVOCABLE AND UNCONDITIONALLY WITHDRAWN, ABATED, SETTLED AND! OR EXTINGUISHED, AND THE OPERATIONAL CREDITORS AND OTH ER CREDITORS SHALL TAKE ALL NECESSARY STEPS TO ENSURE THE SAME. EXCEPT TO THE EXTENT OF THE PAYMENTS TO BE MADE TO THE S.A. NO.24/GAU/2019 (IN ITA NO . 123/GAU/2019) A.Y. 20 14-2015 ASSAM COMPANY INDIA LIMITED 3 OPERATIONAL CREDITORS AND OTHER CREDITORS PURSUANT TO PARAGRAPH 3 AND 4 ABOVE, THE OPERATIONAL CREDITORS AND OTHER CREDITORS OF ACIL (INCLUDING GOVERNMENTAL AUT HORITIES) SHALL HAVE NO FURTHER RIGHTS OR CLAIMS AGAINST ACIL (INCLUDING BUT NOT LIMITED TO, IN RELATION TO ANY P AST BREACHED BY ACIL), IN RESPECT OF THE PERIOD PRIOR T O THE EFFECTIVE DATE, AND ALL SUCH CLAIMS SHALL IMMEDIATE LY, IRREVOCABLE AND UNCONDITIONALLY STAND EXTINGUISHED . 3. A PERUSAL OF CLAUSE 12.1 OF THE RESOLUTION PLAN APPROVED BY THE NATIONAL COMPANY LAW TRIBUNAL SHOWS THAT EXCEPT AS PROVIDED IN THE PLAN, NO AMOUNTS ARE TO BE PAID BY THE ASSESSEE-COM PANY TO THE OPERATIONAL CREDITORS INCLUDING TAXES TO THE GOVERN MENT AUTHORITIES AND THIS POSITION IS NOT DISPUTED BY THE LD. DEPARTMENT AL REPRESENTATIVE. HE, HOWEVER, HAS CONTENDED THAT THE INCOME TAX DEPARTME NT IS CONTEMPLATING TO CHALLENGE THE ORDER OF NATIONAL CO MPANY LAW TRIBUNAL DATED 20.09.2018. THERE IS NOTHING, HOWEVER, BROUGH T ON RECORD BY HIM TO SHOW THAT THE ORDER DATED 20.09.2018 OF NCLT HAS BE EN CHALLENGED BY THE INCOME TAX DEPARTMENT. THE POSITION THAT STANDS TOD AY THUS IS THAT THE ORDER OF NCLT DATED 20.09.2018 IS IN FORCE AND THE IMPUGNED DEMAND, WHICH IS BEING SOUGHT TO BE STAYED, IS NOT ENFORCEA BLE AT THIS STAGE. MOREOVER, THE ORDERS PASSED BY NCLT AS REFERRED TO ABOVE CLEARLY SHOW THE ADVERSE FINANCIAL POSITION OF THE ASSESSEE COMP ANY. KEEPING IN VIEW THIS FACTUAL AND LEGAL POSITION, WE ARE OF THE VIEW THAT IT IS A FIT CASE TO STAY THE OUTSTANDING DEMAND AGAINST THE ASSESSEE FO R A.Y. 2014-15. WE ACCORDINGLY DIRECT THAT THE SAID OUTSTANDING DEMAND BE KEPT IN ABEYANCE FOR A PERIOD OF SIX MONTHS OR TILL THE DISPOSAL OF THE APPEAL OF THE ASSESSEE BY THE TRIBUNAL, WHICHEVER IS EARLIER. THE REGISTRY IS DIRECTED TO POST THE SAID APPEAL FOR HEARING OUT OF TURN ON 19 TH AUGUST, 2019 . 4. IN THE RESULT, THE STAY APPLICATION OF THE ASSES SEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 14, 2019 . SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER V ICE-PRESIDENT (KZ) KOLKATA, THE 14 TH DAY OF JUNE, 2019 S.A. NO.24/GAU/2019 (IN ITA NO . 123/GAU/2019) A.Y. 20 14-2015 ASSAM COMPANY INDIA LIMITED 4 COPIES TO : (1) ASSAM COMPANY INDIA LIMITED, ASSAM TEA HOUSE, 52, CHOWRINGHEE ROAD, KOLKATA-700 071 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2, DIBRUGARH (3) COMMISSIONER OF INCOME TAX (APPEALS)- ,DIBR UGARH, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SR. P.S./DDO/HOO, GUWAHATI, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.